CRIME — appeals — appeal against sentence — whether attempt to stop co-offenders during murder — whether breach of rule in Browne v Dunn — no unfairness from any such breach — assessment of objective seriousness of offence — whether sentencing judge adequately took account of ADHD — ADHD not relevant to offence — whether sentencing judge took account of COVID-19 — COVID-19 issue not material — whether sentence was disproportionately harsh — sentence was proportionate to sustained and brutal murder of defenceless child
Counsel: SJ Odgers SC (Applicant) G Newton SC (Respondent)
Solicitors: Maverick Lawyers (Applicant) Solicitor for Public Prosecutions NSW (Respondent)
File Number(s):
2021/224215
Decision under appeal
Court or tribunal:
Supreme Court
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Be v The King [2024] NSWCCA 100
Case
[2024] NSWCCA 100
Decision Date
CaseChat Overview and Summary
In this case, the appellant was convicted of being an accessory to the murder of a seven-year-old girl in Melbourne. The appeal was against the sentence imposed, not the conviction. The High Court of Australia was asked to consider whether the sentence was appropriate in all the circumstances. The legal issues were whether the appellant's attempt to stop his co-offenders during the murder was a breach of the rule in Browne v Dunn, whether there was any unfairness from such a breach, the objective seriousness of the offence, whether the sentencing judge adequately took account of the appellant's ADHD, whether the sentencing judge took account of the impact of COVID-19, and whether the sentence was disproportionately harsh.
The court held that the appellant's attempt to stop the murder did not breach the rule in Browne v Dunn and that there was no unfairness from any such breach. The court assessed the objective seriousness of the offence as being very high due to the brutal and sustained nature of the murder of a defenceless child. The court held that the sentencing judge did not err in failing to take account of the appellant's ADHD as it was not relevant to the offence. The court also held that the impact of COVID-19 was not a material consideration in sentencing. The court held that the sentence was proportionate to the objective seriousness of the offence and that there was no error in the sentence imposed.